Helliwell v Entwistle [2025] EWCA Civ 1071

Judgment date: 7 August 2025

https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/1071

King, Moylan and Snowden LJJ. A costs judgment in the husband’s favour following his successful appeal against Francis J’s order.

Application

The husband (H) applied for:

• costs of the appeal assessed on an indemnity basis (£120,522);
• repayment of £75,000 paid under the original costs order;
• costs incurred up to and including 20 March 2025, assessed on an indemnity basis (£474,318).

The wife (W) accepted liability for the appeal costs but opposed indemnity assessment and sought to defer payment until after any Supreme Court appeal or the remitted needs hearing in the High Court.

Legal framework

The court’s discretion to award costs is found in CPR 44.2. In exercising this discretion, the court must consider all the circumstances, including the parties’ conduct, the extent of a party’s success in their case, and any admissible non-Part 36 offer (CPR 44.2(4)). Conduct includes matters set out at CPR 44.2(5).

The power to award indemnity costs is found at CPR 44.3(1)(b). Such an order is justified only where the conduct of a party is ‘out of the norm’ (Excelsior Commercial & Industrial Holdings Ltd [2002] EWCA Civ 879) and falls outside the ‘ordinary and reasonable conduct of proceedings’ (Esure Services Ltd v Quarcoo [2009] EWCA Civ 595).

Decision

The court noted that W’s deliberate non-disclosure of the majority of her assets had already been found to amount to fraud in the substantive appeal. Despite expressly warranting full disclosure under the pre-nuptial agreement, she knowingly failed to comply, citing her and her father’s tax affairs as justification. She further used the ‘copy-and-paste’ email to prevent H from obtaining proper legal advice on the disclosure.

In light of the substantive appeal’s findings and W’s rejection of H’s offer to set aside the pre-nuptial agreement for a needs-based assessment under s 25 MCA 1973, W’s conduct was held not to be ordinary and reasonable. It fell ‘out of the norm’.

Costs were to be assessed on an indemnity basis, if not agreed.